SWAPNA GHOSH Vs. SADANANDA GHOSH

JUDGEMENT

(1.) This decree for dissolution of marriage made by the Additional District Judge in a Divorce Suit under the Indian Divorce Act, 1869, has come, as it must, before us for confirmation under Section 17 of the Act and we confirm the same as we are satisfied that the materials on record would warrant such confirmation. But the manner in which the trial Judge has decided the issues involved has not earned our satisfaction and we would accordingly like to draw the attention of the learned Judge to the fact that trial of matrimonial cases, even if undefended as the present one, is a matter, not of easy insouciance, but of most anxious advertence.

(2.) I have, however, my own doubts as to whether the provisions of Section 17 of the Indian Divorce Act requiring confirmation of the decree of the trial court by the High Court should any longer be retained. A decree for dissolution of marriage among the Hindus, Buddhists, Sikhs and Jains under the Hindu Marriage Act, 1955, among the Parsis under the Parsi Marriage and Divorce Act, 1936, among the Muslims under the Dissolution of Muslim Marriages Act, 1939 are made by the District Courts and under the last mentioned Act, even by courts of lower rank and all such decrees operate with the fullest efficacy without any confirmation from the High Court. It is, therefore, difficult to appreciate the retention of the provisions of Section 17 of the Divorce Act providing that the Christian couples, even after obtaining a decree for dissolution from the District Court, may be after a long-drawn and strenuous litigation, must still wait for confirmation thereof from the High Court before those decrees can be complete and binding. These provisions of Section 17, even assuming that they had their days when enacted in the mid-nineteenth Century, have probably outlived their purposes, particularly in the context of the later enactment's relating to matrimonial laws governing the other communities and referred to hereinabove and only result in protracting and prolonging the litigation, even where none of the parties is in a mood to have a further review or reconsideration of their case by any higher Court. All these considerations led the Legislature of the State of Uttar Pradesh to do away with these provisions in Section 17 of the Divorce Act by a State Amendment Act being Act No.30 of 1957. We are inclined to think that our Parliament, or the State Legislatures (Marriage and Divorce being matters in the Concurrent List) should very seriously consider the question of introducing similar amendments in the Divorce Act of 1869 to bring it in harmonious conformity with other analogous enactment's on the subject governing the other communities in India and we are glad to note that a Special Bench of the Madhya Pradesh High Court, while disposing of a confirmation proceeding under Section 17 of the Act in Neena v. John Parmer AIR 1985 Madh Pra 85 at p. 87 (FB), has also made recommendation to that effect in emphatic terms. Whatever doubts there may still be about substantive due process, procedural dud process or procedural reasonableness has doubtlessly been made a part of our Constitutional Law by our Apex Court since the decision in Maneka Gandhi AIR 1978 SC 597 and reference may also be made to the later decisions in Bachan Singh AIR 1980 SC 1355 and in Muthu AIR 1983 SC 473 and to other post-Maneka decisions for the re-affirmation of this position. Have not the Christian spouses been denied procedural reasonableness and due process by these provisions of Section 17 providing for compulsory confirmation hearing, in the context of the spouses belonging to other communities whose matrimonial proceedings are not subjected to any such further hearing?

(3.) Before I proceed further to consider as to whether the grounds alleged by the wife for the dissolution of the marriage have been proved and the decree for dissolution passed by the trial court should be confirmed, I would like to note that, Section 17 apart, there are several other provisions in this Century-old Divorce Act of 1869 which are not only manifestly anachronistic, but have rendered themselves patently open to Constitutional challenge. To start with, under Section 10 of the Act, while the husband is entitled to dissolution on the ground of the wife's adultery, the wife is not so entitled unless she proves that the husband's adultery is incestuous or is coupled with cruelty or bigamy or desertion. If the husband is entitled to dissolution on the ground of adultery simpliciter on the part of the wife but the wife is not so entitled unless some other matrimonial fault is also found to be superceded, then it is difficult to understand as to why this provision shall not be held to be discriminatory on the ground of sex alone and thus to be ultra vires Article 15 of the Constitution countermanding any discrimination on such ground. The only reported decision that comes to my mind in defence for this provision is the one of Panchapakesa Ayyar. J., of the Madras High Court, sitting singly, in Dwarka Bai v. Nainan (AIR 1953 Mad 792), where the learned Judge thought that since the husband even by committing adultery "does not bear a child as a result of such adultery and make it child of his wife to be maintained by the wife'', the wife by committing adultery "may bear a child as a result of such adultery and the husband will have to treat it as his legitimate child and will be liable to maintain that child under Section 488, Criminal Procedure Code read with Section 112 of the Indian Evidence Act", and that "this very difference in the result of the adultery may form some ground" of justification for this differentiation. I have thought that at least since the eleven-Judge Bench decision in the Bank Nationalisation Case R. C. Cooper v. Union of India AIR 1970 SC 564 at p. 596, the effect whereof has been further explained in Bennet Coleman v. Union of India, AIR 1973 SC 106 at p. 120, the law must be taken to be well-settled that however laudable or otherwise justifiable the object or purpose for the differentiation may be, it is not the object or the purpose or the form, but it is the effect, the impact, the result of the law that would determine the question of infringement of fundamental right. I would like to think that even assuming that the liability to conceive as a result of adulterous inter-course may otherwise be a reasonable ground for classification between a husband and a wife permissible under Article 14, since a wife conceives and the husband does not only because of the peculiarities of their respective sex, any discrimination on such ground would be a discrimination on the ground of sex alone against the mandatory prohibition of Article 15. I am afraid that any discrimination on the ground of any liability, inability, disability or incapacity of women resulting from the peculiarities of their sex would amount to discrimination on the ground of sex alone. In C. B. Muthamma v. Union of India, AIR 1979 SC 1868 the validity of the relevant provisions of the Indian Foreign Service (Conduct and Discipline) Rules, 1961, providing that "no married woman shall be entitled to as of right to be appointed to the service" and that "any time after the marriage, a woman member may be required to resign from service, if the Government is satisfied that her family and domestic commitments are likely to come in the way of the due and efficient discharge of her duties", came up for consideration. And it was urged in support of those provisions that marriage with its usual domestic responsibilities and consequential motherhood affects women, at least physically and physiologically, much more than men and, therefore, married women were discriminated against, not on the ground of sex only, but on the ground of Consequential impairment of their usual capacity as a result of marital life. But even then the two-Judge Bench, speaking through Krishna Iyer, J., had no hesitation in holding the impugned provisions to be violative of the equality clause of the Constitution. Then again, under the Divorce Act, Christian spouses are not entitled to dissolution of marriage on the ground of cruelty or desertion, but are only entitled to judicial separation under section 22 which shall have the effect of a divorce a mensa et thoro, that is separation only from "bed and board", whereunder matrimonial bond remains undissolved. But spouses married under the Special Marriage Act, Hindu, Buddhist, Sikh and Jain spouses governed by the Hindu Marriage Act, 1955, Zoroastrian spouses governed by the Parsi Marriage and Divorce Act, 1936, Muslim wives under the Dissolution of Muslim Marriages Act. 1939 are entitled to dissolution of marriage, and not merely judicial separation, on those grounds. Are we then discriminating against Christian spouses and that too, on the ground of their being Christian by Religion and thus violating the mandate of Article 15 interdicting discrimination on the ground of Religiononly?